United States v. Kiandrick Onick

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 1, 2020
• Docket: 20-10165
• Status: Unpublished

Opinion

Case: 20-10165 Document: 00515656747 Page: 1 Date Filed: 12/01/2020

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED December 1, 2020 No. 20-10165 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Kiandrick Onick,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:16-CR-25-1

Before Davis, Stewart, and Dennis, Circuit Judges. Per Curiam:* Kiandrick Onick pleaded guilty to possession of a firearm by a felon, and he was sentenced below the advisory guideline range to 32 months of imprisonment and three years of supervised release. After a remand for resentencing, United States v. Onick, 702 F. App’x 231, 233 (5th Cir. 2017),

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-10165 Document: 00515656747 Page: 2 Date Filed: 12/01/2020

No. 20-10165

the district court resentenced Onick to time served, with a three-year term of supervised release. Onick began serving his term of supervised release on February 28, 2018. On March 26, 2019, the probation officer filed a petition charging that Onick had violated the mandatory conditions of his supervised release that he not commit another federal, state, or local crime, and that he not possess an illegal controlled substance. The report also alleged that Onick submitted four urine specimens that tested positive for marijuana, which violated his mandatory conditions of release, and that he violated the condition that he participate in a drug treatment and testing program by failing to report to submit urine specimens seven times. Based on these alleged violations, Onick was subject to mandatory revocation under 18 U.S.C. § 3583(g), which requires revocation and a term of imprisonment for defendants found to have committed certain gun or drug violations. Onick objected that the mandatory revocation feature of § 3583(g) was unconstitutional under United States v. Haymond, 139 S. Ct. 2369 (2019). The district court rejected his argument and sentenced Onick to 11 months of imprisonment, with no additional term of supervised release. Because Onick preserved his challenge, our review is de novo. United States v. Garner, 969 F.3d 550, 551 (5th Cir. 2020). In Haymond, the Supreme Court held that a different mandatory revocation provision, § 3583(k), violates the Fifth and Sixth Amendments. 139 S. Ct. at 2373. Onick argues that the Court’s reasoning in Haymond invalidating § 3583(k) applies with equal force to § 3583(g). However, we rejected Onick’s exact argument in Garner, concluding that § 3583(g) “lacks the three features which led the Court to hold § 3583(k) unconstitutional.” Id. at 551. Specifically, we stated that (1) Subsection (g) applied more generally to violations of common supervised released conditions, while Subsection (k) applied only when a

2 Case: 20-10165 Document: 00515656747 Page: 3 Date Filed: 12/01/2020

defendant committed a discrete set of criminal offenses; (2) Subsection (g), unlike Subsection (k), did not dictate the length of the sentence imposed for the violation; and (3) Subsection (g), unlike Subsection (k), did not prescribe a sentence that was based on the violation, but instead granted the judge discretion to impose any sentence authorized under the general revocation statute. Id. at 553. Based on the differences between § 3583(k) and § 3583(g), we held that § 3583(g) “is not unconstitutional under Haymond.” Id. AFFIRMED.